On behalf of the defendant-appellant, the cause was
submitted on the briefs of George M. Tauscheck, Milwaukee.

Respondent

ATTORNEYS:

On behalf of the plaintiff-respondent, the cause was
submitted on the brief of Warren D. Weinstein, assistant attorney general, and J.B. Van Hollen, attorney
general.

2013 WI App 132

COURT OF APPEALS

DECISION

DATED AND FILED

October 23, 2013

Diane M. Fremgen

Clerk of Court of Appeals

NOTICE

This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2012AP2191-CR

Cir. Ct. No.2010CF599

STATE OF WISCONSIN

IN COURT OF
APPEALS

State of Wisconsin,

Plaintiff-Respondent,

v.

Carl A. Reed,

Defendant-Appellant.

APPEAL
from a judgment and an order of the circuit court for Kenosha County:anthony
g. milisauskas, Judge.Affirmed.

Before
Brown, C.J., Neubauer, P.J., and Reilly, J.

¶1NEUBAUER, P.J. In this case, we uphold the
circuit court’s choice of remedy when a defendant breaches his or her plea
agreement by committing new crimes.Carl
A. Reed pled no contest to substantial battery in exchange for the dismissal of
three other counts and the State’s promise to make no recommendation at
sentencing.Under the agreement, the
State reserved the right to withdraw from the agreement if Reed “commits any
new or additional crime(s).”Pending
sentencing, Reed was charged with new crimes.The circuit court found that these newly charged crimes constituted a
breach of the plea agreement.The
circuit court went ahead with sentencing, allowing the State to change its
recommendation and denying Reed’s request to withdraw his plea.We agree with the circuit court that Reed
breached the plea agreement.Furthermore, we conclude that the circuit court’s choice of remedy, to
hold Reed to his plea and allow the State to recommend time at sentencing, was
an appropriate exercise of discretion.We affirm.

FACTS

¶2Reed and the State entered into a plea agreement after Reed
was charged with substantial battery, misdemeanor theft, first-degree reckless
endangerment and misdemeanor bail jumping, all as a repeater.Under the plea agreement, Reed pled no
contest to the battery.He also agreed,
among other things, that the State could withdraw from the agreement “at any
time prior to sentencing if the defendant violates any bail condition(s), [or]
commits any new or additional crime(s).”The State agreed to dismiss and read in the remaining charges and to
“make no specific recommendation at sentencing.”The circuit court took Reed’s plea.Less than two months later, the Kenosha
County District Attorney’s office filed a new complaint against Reed, this one
alleging battery, operating a vehicle without the owner’s consent, disorderly
conduct/domestic abuse and operating a motor vehicle after revocation.

¶3Reed’s case proceeded to sentencing.At the sentencing hearing, defense counsel
told the circuit court that the State had notified the defense that, due to the
new charges, the State did not intend to follow through with its obligation
under the plea agreement to make no sentencing recommendation.The State contended that Reed violated the
agreement by committing a new crime.Defense counsel argued that Reed’s newly charged offenses had not been
proven, so the State should not be allowed to withdraw from the plea agreement.Defense counsel indicated that if the State
made a sentencing recommendation in violation of the plea agreement, the
defense would ask the court to withdraw the plea.The State maintained that the new charges
violated the plea agreement because Reed waived his preliminary hearing;
probable cause was found.The circuit
court found that Reed had violated the plea agreement and that the State could
make “a different recommendation.”The
State recommended three years and six months in prison followed by extended
supervision.Defense counsel asked for
probation.The circuit court sentenced
Reed to three years’ initial confinement and two years’ extended
supervision.The circuit court denied
Reed’s postconviction motion to withdraw his plea.

DISCUSSION

¶4On appeal, Reed argues that the State breached the plea
agreement by recommending time at sentencing and that, as a remedy, Reed should
be allowed to withdraw his plea.Reed
admits that whether the State breached the plea agreement depends on whether he
himself breached the agreement by committing new crimes.Reed argues that at sentencing it was not
known whether he had committed a new crime; the probable cause finding was not
proof of guilt.The State responds that
the circuit court correctly concluded that Reed substantially and materially
breached the plea agreement due to the newly filed charges against him.Finally, the State argues that the circuit
court appropriately exercised its discretion in allowing the State to hold Reed
to his plea and recommend time at sentencing.

¶5We agree with the State.Reed’s newly charged offenses were a substantial and material breach of
the plea agreement.The State was
entitled to a remedy.Under the totality
of the circumstances, it was within the circuit court’s discretion to allow the
State to make a recommendation.We first
address Reed’s conduct as a material and substantial breach, then turn to the
remedy.

Reed’s Alleged
Conduct Constitutes a Substantial and Material
Breach of the Plea Agreement.

¶6We review the circuit court’s determination that there was a
breach of the plea agreement, and that the breach was material and substantial,
de novo.State v. Williams, 2002
WI 1, ¶5, 249 Wis. 2d 492, 637 N.W.2d 733.We review the circuit court’s findings regarding the underlying terms of
the plea agreement and the historical facts of the parties’ conduct under the
clearly erroneous standard.Id.

¶8Reed argues that the filing of new charges against him does
not mean that he violated that portion of the plea agreement indicating that
the State may withdraw if he violates bail conditions or commits new
crimes.According to the criminal
complaint filed in the new case, Reed admitted to driving while his license was
revoked.The circuit court observed, and
Reed does not dispute, that the alleged conduct constitutes felony bail
jumping.Rather, Reed argues that
probable cause findings do not “rise to the level of clear and convincing
evidence required for a finding that he breached the plea agreement.”

¶9We agree with the circuit court that it would be unreasonable
to conclude that the promise to commit no new crimes requires a conviction to
be enforceable.The State would not have
bargained for a condition that would require the whole panoply of criminal
proceedings, not to mention the delay, before the parties could determine if
Reed had fulfilled his part of the plea agreement.More to the point, the charging of new crimes
and probable cause findings bear directly on sentencing and, consequently, the
State’s recommendation.“In Wisconsin,
sentencing courts are obliged to acquire ‘full knowledge of the character and
behavior pattern of the convicted defendant before imposing sentence.’”See State v. Leitner, 2002 WI 77, ¶45, 253 Wis. 2d 449, 646 N.W.2d
341 (citation omitted).Thus, at
sentencing, the State is allowed to bring forth, and the circuit court may
consider, pending charges.Id. (court may consider unproven
crimes and even alleged crimes of which the defendant has been acquitted); State
v. McQuay, 154 Wis. 2d 116, 126, 452 N.W.2d 377 (1990) (“In determining the character of the defendant and the need
for his [or her] incarceration and rehabilitation, the court must consider
whether the crime is an isolated act or a pattern of conduct.Evidence of unproven offenses involving the defendant
may be considered by the court for this purpose.”); Elias v. State, 93 Wis. 2d
278, 284, 286 N.W.2d 559 (1980) (sentencing court can “consider pending charges for which there has
been no conviction”).Reed’s
breach deprived the State of the substantial and material benefit for which it
bargained—tailoring its recommendation to all known criminal conduct at the
time of sentencing.

¶10Reed’s breach further deprived the State of the substantial and
material benefit of protecting the public from Reed’s misconduct while Reed
waited for sentencing.Reed reaped the
benefits of the dismissal of three charges against him, but did not comply with
the written requirement in the plea agreement that he not commit any new
crimes.Reed’s breach was material and
substantial.

Allowing
the State to Make a Recommendation Was Not an Erroneous
Exercise of Discretion.

¶11After determining that Reed had violated the plea agreement,
the circuit court allowed the State to make a recommendation at sentencing,
contrary to the terms of the agreement.Reed acknowledges that if he breached the plea agreement, then “the
State was allowed to exceed the negotiated recommendation.”We agree.

¶12The determination of the appropriate remedy for a breach of a
plea agreement is within the discretion of the circuit court.State v. Deilke, 2004 WI 104,
¶¶25-26, 274 Wis. 2d 595, 682 N.W.2d 945 (appropriate exercise of
discretion to rescind plea agreements after defendant’s collateral attack on
previous convictions); State v. Rivest, 106 Wis. 2d 406,
414-15, 316 N.W.2d 395 (1982) (plea agreementmay be vacated due to
defendant’s false testimony); State v. Roou, 2007 WI App 193, ¶13,
305 Wis. 2d 164, 738 N.W.2d 173 (“[A] trial court’s choice of remedy when faced
with a motion to withdraw all or part of a plea agreement should be reviewed
under an erroneous exercise of discretion standard.”); Howard, 246 Wis. 2d 475,
¶36 (“[T]he sentencing court has discretion to determine the appropriate remedy
for a breach.”).We uphold a
discretionary determination by the circuit court if the record shows that
discretion was exercised and that there was a reasonable basis for the court’s
decision. Brown v. Mosser Lee Co.,
164 Wis. 2d 612, 617, 476 N.W.2d 294 (Ct. App. 1991).

¶13The appropriate remedy for breach of a plea bargain depends on
all of the circumstances of the case.Robinson,
249 Wis. 2d 553, ¶48.In choosing a
remedy, the circuit court should consider both the defendant’s and the State’s
interests.Id.Here, the circuit court reviewed the terms of
the written plea agreement, including the provision that the defendant
understood the State could withdraw from the plea agreement at any time prior
to sentencing if he violated any bail conditions or committed any new
crimes.The circuit court noted that
Reed had been charged with a new or additional crime.Further, the circuit court noted that
vacating the entire agreement would expose Reed to three more charges with
possible additional prison time of four and one-half years.The circuit court concluded that the best
remedy under the totality of the circumstances would be to allow the State to
make a recommendation at sentencing.

¶14The circuit court’s decision was not a misuse of
discretion.The circuit court noted at
the postconviction hearing that Reed breached and “the State did not do
anything that was incorrect.”The
nonbreaching party—the State—did not seek to vacate the entire agreement.Allowing the State to make a sentencing
recommendation based on the probable cause charging of new crimes does not
deprive Reed of any constitutional protections because this dispute does not
arise in the prosecution for the new crimes.Rather, Reed is being held responsible for the first battery, to which
he pled no contest, and the State’s new sentencing recommendation in light of
the new pending charges was appropriately considered by the sentencing court.

¶15“[I]n a plea bargain the government’s obligation to make a
recommendation arises only if defendant performs his obligation….”Rivest, 106 Wis. 2d at 411-12
(citation omitted).Reed did not fulfill
his end of the bargain; he committed new crimes for which he was charged and
probable cause found.The State should
not be held to its reciprocal obligation.Reed’s breach related directly to sentencing; Reed’s newly charged
crimes constituted new information that the State and the court could consider
at sentencing.As our supreme court
aptly stated:“To allow a defendant to claim
the benefit of an agreement where he, himself, is in default, offends fundamental
concepts of honesty, fair play and justice.”Id. at 414.The circuit
court’s remedy was an appropriate exercise of discretion, and we affirm.